October 20, 2006

Justice Scalia responds to a question about Bush v. Gore. He adds: "It surely is not activist to apply the text of the Constitution, which is what the court did." Yes. But that's what they all say. It could be true, but asserting it doesn't make it so.

14 comments:

One thing I noticed, is that he seemed to be responding to the 7-2 decision to reverse the Florida Supreme Court, a decision that seems largely uncontroversial, rather than the considerably more questionable 5-4 decision to halt any more activity and declare a winner.

One thing that's always struck me as strange is that Ginsberg, who along with one other, actually supported the judicial overreach of the FSC in favor of her preferred candidate, is never labeled as an extremist in the mainstream media the way Thomas and Scalia are.

One thing that's always struck me as strange is that Ginsberg, who along with one other, actually supported the judicial overreach of the FSC in favor of her preferred candidate, is never labeled as an extremist in the mainstream media the way Thomas and Scalia are.

The Chief Justice of the FSC ( a dem appointee) also stated in his dissent that the Florida court's pro-Gore/Lieberman decision would not pass Supreme Court muster. If I remember correctly, the FSC vote was a one vote victory, so other dems on that court besides the Chief thought the majority decision was toxic.

Look, I yield to no one in my respect, admiration, and, oh hell, ofttimes just outright obsequiousness for Nino, but his attempts to get out of Bush v. Gore just aren't convincing. And the fact is, that there's a convincing argument for Bush v. Gore - you'll find it in the Chief's concurrence.

At the very least, in that case, Scalia and Thomas joined an equal protection opinion that was utterly specious, and they know it. The equal protection clause speaks nothing to voting rights, and Nino has advocated as much as vocally as any of us. The truth is, though, there was a good argument for grinning an bearing the Kennedy horseshit, if O'Connor and Kennedy really wouldn't join the Chief's opinion, given that to refuse to join Kennedy would create a 4-3-2 split and give the resolution of the case to Stevens. So I'm not unsympathetic to their plight, and I understand why they joined Kennedy's opinion, but the "get over it" attitude is basically helping perpetuate the idea that Bush v. Gore is naked judicial activism. He can, and should, do better.

Jim - that was precisely my thought as well. You can't defend Bush v. Gore on the grounds of "get over it, it was six years ago" if you've said the sort of things that Justice Scalia (and, for that matter, I) have said about Roe. I wouldn't be satisfied with "it was thirty years ago, get over it" from Nan Aron, and I don't expect anyone who disagrees with Bush v. Goreto be satisfied by the same argument.

Well, being conservative maybe, I thought the Equal Protection analysis was a lot more plausible than the analysis by the FSC that essentially said that it was ok to apply different voting standards to different counties, AND that the time limits and provisions in the FL statutes didn't mean what they obviously said.

I have never understood why treating different voters differently, and applying different standards to different voters in the same state wouln't be an Equal Protection issue.

I agree though that the 7-2 decision was a lot easier to handle than the one terminating the FL recount. Somewhat implicit in that is the assumption that it is more important to have a timely decision than a correct one. And, maybe that is viable, but it does open the Court up to some of the same problems that it faces because of Roe et al.